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Facts and Procedural Background – Tanvir Hussain #22 Mr Hussain is a High Risk Category A prisoner who was convicted of Islamic orientated terrorist charges in 2009. He was a Category A prisoner in HMP Frankland on 25 April 2010, when he was discovered to have carried out a serious attack on another prisoner (Prisoner A) resulting in wounds to the victim's face. The attack took place in a cell and prison staff were alerted by the shouts of the victim. Mr Hussain was observed striking Prisoner A in the face with an object. When asked what he used to mount the attack, Mr Hussain replied "look on the floor in the cell and you will find it" and a weapon was found. Mr Hussain was immediately removed from the scene and placed in the Segregation Unit.
#23 A Disciplinary Adjudication took place on the following day 26 April 2010 and the Adjudicator decided to refer the matter to the police in the light of the seriousness of the charge. On the same date, Governor Greener exercised his authority under Rule 45 (1) of the Prison Rules 1999 to segregate the Claimant for the maintenance of good order or discipline. In reaching this decision, Governor Greener states that he:
"…..took into account the very serious nature of the charge against the claimant, the severity of the physical attack and the fact that the attack appeared to have arisen as a result of a mundane disagreement with the victim over an item of food and the risk that …….the Claimant posed to other prisoners. I also gave serious consideration to the risks of violent physical attack upon Mr Hussain in …..possible reprisal from the victim….and his peers."
#24 Mr Greener sets out in his witness statement how he also considered whether the Claimant's risk could successfully be managed by means of transfer to another wing, closer supervision on normal location or transfer to another establishment. However he stated that:
"I was and remain of the opinion that transfer to another wing or establishment would have the effect of simply moving the risk to another location rather than addressing it and allowing it to be safely managed."
#25 Mr Greener also explains that there was intelligence information which linked Mr Hussain with the:
"conditioning of other vulnerable segregated prisoners who are susceptible to manipulation due to specific mental health needs. Three such prisoners have advised Segregation Unit staff that they have changed religion from Christianity to Islam and that they have been converted through their cell windows by another prisoner."
#26 These prisoners had approached the establishment Imam, who became concerned as to the manner of their conversion. Security intelligence suggested that Mr Hussain had preached Islamic ideals through his cell window in "determined attempts to convert non-Muslim prisoners to his own interpretation of Islamic ideals. Concerns are that Mr Hussain's interpretation of the Koran are in line with his terrorist beliefs and conviction; and, promulgation of his ideals have the potential to cause serious disruption within the Segregation Unit as well as within the general prisoner population."
#27 The Segregation Review Board first met in relation to Mr Hussain on 27 April 2010. It was attended by amongst others a governor, a member of the IMB and a member of the prison chaplaincy. The Review Board decided that the risks presented by the Claimant were such that he should remain in segregation. Further meetings of the Review Board were held on 5 May, 19 May, 2 June, 16 June, 30 June and 14 July 2010. On each occasion, the membership of the Review Boards included at least one governor and at least one member of the Independent Monitoring Board, in addition to members of the Chaplaincy, members of the Mental Health Unit or Psychology Unit and others. On each occasion, the governor in attendance in the Review Board's was not the governor involved in the original decision to segregate. The Claimant was given the opportunity on each occasion – an opportunity which he took up – of attending the meetings and making detailed representations. On each occasion the Review Board concluded that continued segregation was justified.
#28 Judicial Review proceedings were issued on 15 June 2010. Mr Hussain remained segregated until October 2010.
#29 Just as this judgment was in final draft, Mr Hussains' solicitors communicated with the Court on 8 February 2011. The Crown Prosecution Service had written to the solicitors on 3 February notifying them that they had decided to discontinue proceedings for assault occasioning actual bodily harm in relation to the episode on 24 April 2010, on the grounds that "there is not enough evidence to provide a realistic prospect of conviction".
#30 Part of this Claimant's complaint is that whilst segregated he was informed that he can only use the telephone on every 3rd day. On his "allotted rota day" he was permitted to make a short call to his family and a 10 minute call to his solicitors. If the 3rd day fell on a weekend, then effectively the opportunity to make a legal call was missed and the Claimant had to wait for the next 3rd day rotation. The Claimant complains this routine was stuck to rigidly, regardless of whether the prisoner:
"……is a potential (or actual) Claimant in judicial review proceedings and requires urgent contact with his lawyers in relation to matters connected …….."
The Claimant submitted daily applications to make calls to his solicitors both in relation to the judicial review proceedings and in relation to his then pending criminal appeal cases.
#31 Mr Greener deals with the question of access to telephones on the segregation unit in his witness statement. He explains that the segregation unit at HMP Frankland contains 28 cells, all intended for single occupancy. The cells are distributed over three landings. The Unit contains two telephones one on the ground floor and the other on the first floor. The telephone on the ground floor is:
"Largely reserved for prisoners who have recently been violent towards staff, in order to avoid the need to accompany such prisoners up and down stairs".
#32 Mr Greener goes on to explain that in order to ensure fair access to the telephones within the segregation unit, a rota system is in place which allows each prisoner reasonable access to a telephone, sometimes daily, but as a minimum once within every three day period. Staff will attempt to allow more frequent access to prisoners who are appealing their sentences. Where increased segregated prisoner population places an increased demand on the prisoner's telephone, a prisoner is provided with a solicitor's letter. Mr Greener sets out how in a sample period of 16- 22 June the Claimant made telephone calls on 16, 17, 19, 21 and 22 June. On 18 June he requested a legal call but the telephone was unavailable and so he was offered the opportunity to send a legal letter. He made no request to use the telephone on 20 June.
#33 The suggestion on behalf of Mr Hussain, in evidence from his solicitors, is that there is a real restriction on his telephone communication, not only by the limited number of calls but by the arbitrary time when the calls may be made during the day and by the limit on the length of any given call. There is also a complaint about the delay in delivery of correspondence, the limitations on access for visits and the length of visits. The solicitors complain that they have been able to attend the Claimant at Frankland:
"…..six times during the nearly two months since he was segregated on 25 April 2010. These visits have each lasted only about one hour and fifteen minutes. This is because of the length of time it takes to get through to the legal visits area……"
#34 The nub of the complaint in relation to phone access is that there is an excessive restriction on contact with the prisoner's lawyers, that a prisoner is not permitted or facilitated to call their solicitor on any particular date, and that this Claimant has been denied access to telephones when the segregation unit lacks resources.
Conclusions #91 In the case of the Claimant Hussain there was little or no factual dispute underlying the decision to segregate him. It is not in dispute but that he was involved in a serious episode with another prisoner. This position is unaltered by the decision not to maintain the prosecution, reached in February 2011. Throughout the period of his segregation the prison service were aware of pending criminal prosecutions based in part on a confession by the Claimant. The decision to drop the criminal proceedings serves to underlie the different considerations arising in the decisions to segregate and the decision to mount, or maintain criminal prosecution. In Hussain's case, I simply fail to see any argument based on a lack of disclosure or the nature of the procedure.
Group: J7 Forum Team
Member No.: 18
Joined: 24-January 06
Appeal over intelligence allowed
3:08pm Wednesday 13th July 2011
The Home Office today won a Supreme Court appeal over a ruling that it must reveal the gist of “sensitive” intelligence material to a man bringing a damages action linked to an airlines terror bomb plot. [read: Home Office appeal to not show evidence allowed & Kashif Tariq's appeal to force the Home office to reveal the evidence of why he lost his security clearance/job, not allowed]
Kashif Tariq, whose cousin was convicted of being involved in the plot, was suspended from his post as an immigration officer in 2006 due to “national security concerns” and had his security clearance withdrawn.
Lawyers for Mr Tariq, who was employed at Plymouth, Devon, say he was treated unfairly by the Home Office because he himself was never accused of terrorist activity.
Mr Tariq is seeking damages from an employment tribunal for the loss of his career through racial or religious discrimination.
To pursue his claim he wants to know the essence of the secret intelligence evidence the Home Office is relying on to defend its actions.
Last year the Court of Appeal upheld employment tribunal decisions that evidence touching on national security could be heard behind closed doors, but also that Mr Tariq was entitled at least to know the allegations against him in sufficient detail for his legal representative to be able to challenge them effectively.
Government lawyers had argued in the Court of Appeal that, in such cases, having to make disclosure of even the gist of secret material would have “enormous ramifications” if it became the norm, and that the Government could be forced to capitulate, rather than defend damages claims at tribunal hearings.
Appeal judges ruled that Mr Tariq had a right to know the “gist” both under Article 6 of the European Convention on Human Rights, which safeguards fair trials, and at common law.
But today justices in the highest court in the land allowed an appeal by the Home Office against that decision by a majority of eight to one.
They unanimously dismissed Mr Tariq’s appeal against the ruling that evidence could be heard behind closed doors, holding that a closed material procedure was compatible with Article 6 and EU law.
Mr Tariq’s appeal concerned the permissibility of a procedure which means that a claimant in employment tribunal proceedings may be excluded along with his representatives from certain aspects of those proceedings on the grounds of national security.
In its decision, the court agreed with the Government that secret evidence could be used in the employment tribunal in a claim involving national security.
Parliament had legislated specifically to create an exception in such cases.
The justices ruled that the use of the closed material procedure in Mr Tariq’s case was lawful and said the system contained sufficient safeguards in the form of special advocates who can protect his interests.
In relation to the Home Office’s appeal, the court said that in cases which do not involve someone’s liberty the question was whether the use of the closed material procedure would impair the “very essence of the right to a fair trial”.
The judges said Mr Tariq’s claim would be determined by an independent and impartial tribunal and the disadvantages that the procedure gave rise to “will as far as possible be minimised”.